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March 27, 1978

CLARA MORRIS, Plaintiff,
THE STUYVESANT INSURANCE CO., EDWARD A. PICHLER, Sheriff of The City of New York, and MATTHEW A. PARRILLO, Deputy Sheriff of The City of New York, Defendants

The opinion of the court was delivered by: TENNEY



 Plaintiff Clara Morris has brought an action in this Court pursuant to 42 U.S.C. § 1983 charging that N.Y.C.P.L.R. § 3218, New York's confession of judgment statute, is unconstitutional on its face and as it was applied to her. Plaintiff is currently seeking a preliminary injunction to prevent the sale of her home in execution of the lien obtained by the defendant insurance company upon a judgment entered in accordance with a cognovit note previously executed by the plaintiff. The defendant insurer has cross-moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. (The other defendants have not appeared and seem to have been named purely in their ministerial roles as officials charged with execution of the lien. Consequently future reference to "the defendant" will pertain only to The Stuyvesant Insurance Company.) For the reasons set forth, plaintiff's request for injunctive relief is denied and summary judgment is awarded to defendant dismissing the complaint.

 According to the statement of facts contained in the complaint, plaintiff's husband, Robert Riddick, was accused by the defendant of misappropriating collateral he collected while serving as a bail bondsman agent of defendant. On February 23, 1976, the plaintiff executed a sworn instrument labelled, in the upper right hand corner and in rather large type, "Statement and Confession of Judgment." She there confessed judgment in favor of the defendant in the amount of $35,000

for a debt justly due the plaintiff arising from the following facts: Collateral received by Robert Riddick on behalf of the Stuyvesant Insurance Company and not paid to The Stuyvesant Insurance Company, and for which Clara Morris is indemnifying The Stuyvesant Insurance Company.

 Defendant's Notice of Motion, Exhibit A. *fn1"

 The confessed judgment was entered pursuant to N.Y.C.P.L.R. § 3218 on February 26, 1976, by the County Clerk of Bronx County, wherein the plaintiff resides. It does not appear that the defendant took any immediate action to execute the lien arising from the entry of the judgment. According to the next document before this Court, plaintiff moved, on August 10, 1976, the New York State Supreme Court, Bronx County, to vacate the entered judgment. In support of that motion Clara Morris swore that she had no notice of the pending execution of the lien until August 4, 1976; it would seem, therefore, that some five months passed before defendant began proceedings to enforce the lien.

 Plaintiff thereafter had several "days" in state court. Including the motion referred to above, she filed three different motions to vacate; all were denied. The full text of each denial is set out in the margin. *fn2" (She also filed an appeal to the denial of one of them but defaulted in its prosecution.) Each of the motions filed was accompanied by supporting affidavits made by Clara Morris which alleged, inter alia, lack of consideration for the cognovit, invalidity of the underlying debt, duress based on defendant's "threats" to report Mr. Riddick's alleged defalcations, forgery of her signature, purported omission on the signed paper of the sum being confessed, and noncomprehension of the meaning and significance of what she signed. Plaintiff's argument to the state court on the last contention is of critical significance in the case brought here. The only theory upon which her claim can be heard in this Court rests on a two-pronged condition precedent: that section 3218 was applied to her in derogation of due process and that collateral estoppel principles do not preclude assertion of that claim in this forum.

 In the companion cases of D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 31 L. Ed. 2d 124, 92 S. Ct. 775 (1972), and Swarb v. Lennox, 405 U.S. 191, 31 L. Ed. 2d 138, 92 S. Ct. 767 (1972), the Supreme Court addressed due process challenges to cognovit procedures which lacked notice and hearing components. In Overmyer, upon which plaintiff heavily relies, the Court enunciated the principle that a "voluntary, knowing and intelligently made" waiver of notice and hearing renders compatible with due process a confession of judgment statute lacking those safeguards. Overmyer, supra, 405 U.S. at 185. Swarb is even more apposite to the instant facts: that case involves consumer consent to cognovit provisions, a situation similar to the instant case in that the signer presumably possesses the same lack of sophistication which plaintiff claims here. Swarb reiterates the Overmyer holding in much the same language: confessed judgment without notice and hearing complies with due process only if "'there has been an understanding and voluntary consent'" to the waiver. Swarb, supra, 405 U.S. at 198 (citation omitted).

 Therefore, the sole question before this Court is whether plaintiff litigated the issue of voluntary and consensual waiver in the proceedings before the state, and whether that issue was necessary to the decisions reached there. The Court concludes that both questions must be answered affirmatively; therefore, plaintiff is barred from relitigating the issue in this forum. Turco v. Monroe County Bar Ass'n, 554 F.2d 515 (2d Cir. 1977); Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974).

 The Court finds devoid of merit plaintiff's contention that she did not have a "hearing" on any of the motions submitted or the questions raised in state court. Memorandum in Opposition to Summary Judgment 2. By this assertion the Court understands that plaintiff comprehends "hearing" to mean only a formal proceeding held in a courtroom with full panoply of witnesses, examination and adversarial argument. No such type of "hearing" is required to give that finality on the merits to raise issues of res judicata and collateral estoppel. Mitchell v. National Broadcasting Co., 553 F.2d 265, 271 (2d Cir. 1977). In Olsen v. Muskegon Piston Ring Co., 117 F.2d 163 (6th Cir. 1941), cited with approval in Mitchell, supra, the court stated:

A judgment on the merits does not require a determination of the controversy after a trial or hearing on controverted facts. It is sufficient if the record shows that the parties might have had their controversies determined according to their respective rights if they had presented all their evidence and the court had applied the law.

 Id. at 165. Ms. Morris did present all her evidence and was "heard" in state court not once but three times. Moreover, examination of what was presented to the state court reveals that the underlying fact issue upon which her challenge to the constitutional validity of section 3218 rests -- whether her waiver of notice and hearing was knowing and voluntary -- was argued to, and necessarily considered by, the state court in the three denials of relief. See Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978).

 In support of the instant motion plaintiff has submitted an "appendix of the State proceedings in chronological order . . . wherein plaintiff attempted to set aside the judgment" ("Plaintiff's Appendix"). Plaintiff's Memorandum in Opposition 3, n.3. *fn3" It ...

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